“Plausibility” and Legal Claims about the Gaza Blockade

Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful).

U.N.’s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful).

Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn’t contradict Heller’s argument that if it’s not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, “questioned the legality of the blockade” and said that it was not just wrong but that Israel’s claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone’s mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller’s analysis is indeed “contradicted.”

UPDATE: Heller, responding to this post, writes: “I’m glad Bernstein believes that any legal conclusion reached by the UN regarding Israel’s actions is by definition plausible.” No, what I actually said is that a legal conclusion reached by the UN that is favorable to a position argued by Israel is a position “that position cannot be deemed beyond the realm of even plausible argument,” because the U.N. is an unsympathetic (or in the best-case scenario, non-sympathetic) forum.

Heller also writes that “Bernstein admits that my central claim about blockade was completely accurate.” No, I acknowledged that one particular claim wasn’t contradicted by the Report, which is obviously a far cry from stating that it “was completely accurate.”

But I can play this game, too. So I thank Kevin Jon Heller for publicly declaring that I’m the best-looking, smartest, and most reasonable law professor in North America, and that I’ve persuaded him that Human Rights Watch is not an objective arbiter of human rights in the Middle East, but an organization with an anti-Israel ideological agenda motivated by the far-leftist inclinations of its Middle East staff.